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Rosen v. Rosen

Appeals Court of Massachusetts, Essex

November 22, 2016

REGINA ROSEN
v.
SCOTT ROSEN.

          Heard: April 8, 2016.

         Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on January 17, 2001.

         Complaints for modification and contempt, filed on August 2, 2011, and October 12, 2012, respectively, were heard by Susan D. Ricci, J.; a motion for reconsideration, filed on July 7, 2014 was heard by her, and judgment was entered by her.

          Mary-Ellen Manning for the mother.

          Mark A. Perkins for the father.

          Present: Kafker, C.J., Wolohojian, & Maldonado, JJ.

          WOLOHOJIAN, J.

         Today we reach the question left open in T.M. v. L.H., 50 Mass.App.Ct. 856, 861 (2001), namely, whether "a judge, in compelling circumstances of an equitable nature, and without contravening G. L. c. 119A, § 13 (a.), may apply a credit in calculating child support arrearages to reflect payments made in a manner other than as directed by the original [child support] order."[1] We conclude that, despite the statutory prohibition against retroactive modification of child support judgments "except with respect to any period during which there is pending a complaint for modification, " G. L. c. 119A, § 13 (a.), inserted by St. 1987, c. 714, § 1, a judge may -- in certain very limited circumstances -- grant and apply such an equitable credit to offset a child support arrearage accrued during a period when there was no pending complaint for modification.

         Background.

         After fourteen years of marriage, the parties divorced on July 14, 2003, pursuant to a judgment of divorce which incorporated the parties' separation agreement. The separation agreement provided, in pertinent part, that the mother would have primary physical custody of the parties' three children, Elliot, Ari, and Hannah, and that the father would pay monthly child support in the amount of $4, 500. The separation agreement also contained several provisions relating to the children's college education. In one of those provisions, the parties "agree[d] that the choice of college or other institutions shall be made jointly, with due regard to the children's wishes, welfare, needs and aptitudes, and the parties' respective financial circumstances. Neither party shall make commitments to a . . . college . . . without first notifying the other and obtaining his or her approval . . . ." The parties also "agree[d] to contribute to the college costs of the children to the best of their financial ability." The separation agreement's provisions relating to "custody, care, visitation, support, education and medical care of the parties' minor children" were merged with the judgment of divorce, while the remaining provisions survived and were not merged with the judgment.

         At the time of the divorce in 2003, all three children lived with the mother. However, by January 1, 2007, the parties' oldest child, Elliot, had moved into the father's home. The father thereafter reduced his child support payments by one-third, to $3, 000 per month, without court approval.

         More than two years later, on April 4, 2009, the parties entered into a signed and notarized "Agreement for Judgment on Modification" (2009 agreement), which provided that the father would pay monthly child support of $3, 400, along with a lump sum of $2, 500 upon the court's approval of the 2009 agreement, and an additional $2, 900 over the next six months. On April 9, 2009, the father filed the 2009 agreement with the Probate and Family Court; however, it was returned to him without being docketed due to certain procedural deficiencies.[2] Those deficiencies were not cured, and the 2009 agreement was never refiled with the Probate and Family Court.

         By August, 2011, the parties' second child, Ari, had also moved into the father's home. In early August, 2011, the father filed another complaint for modification (2011 complaint for modification), which he served on the mother on August 11, 2011. In the 2011 complaint for modification, the father requested (1) a reduction in his child support in light of the fact that two of the three children were living with him, and (2) an order requiring the mother to contribute to the children's college expenses. On October 13, 2011, a judge of the Probate and Family Court allowed the father's motion for temporary orders, reducing the father's child support payments from $4, 500 per month to $200 per week.

         In December, 2011, the parties' third child, Hannah, moved into the father's home, at which point all three children were living with the father and principally dependent on him for support and maintenance. On May 4, 2012, the judge allowed the father's motion to terminate child support.

         On October 12, 2012, the mother filed a complaint for contempt asserting that the father was approximately $103, 701 in arrears for child support that accrued before the court's October 13, 2011, temporary order.

         On July 17, 2014, following a six-day trial on the consolidated modification and contempt proceedings, the Probate and Family Court entered an "Amended Judgment of Modification, " an "Amended Judgment on Contempt, " and supporting "Amended . . . Findings of Fact."[3] In the amended judgment of modification, the judge reduced the father's child support obligation to $280 per week, retroactive to August 11, 2011, the date on which the mother had been served with the 2011 complaint for modification. The judge terminated the father's child support obligation retroactive to December 31, 2011, the date upon which "[all] three children were solely dependent upon and residing with [the] [f]ather." The judge further ordered the mother to reimburse the father for "approximately seventeen percent (17%) of the college education expenses of the three children either paid or undertaken in the form of a loan by [the] [flather" from August 11, 2011, through December 31, 2011, and ten percent of the college expenses "[f]rom January 1, 2012 going forward."

         In the amended judgment on contempt, the judge acknowledged that while she could not "validate" the 2009 agreement as a defense to contempt, see Quinn v. Quinn, 49 Mass.App.Ct. 144, 145-148 (2000), she did not find the father in "wilful contempt" of his child support obligation. The judge found that, from January 1, 2007, to December 31, 2011, the father's total child support obligation was $254, 697, taking into account the retroactively modified child support beginning on August 11, 2011. The judge determined that from January, 2007, to May, 2012, the father made child support payments to the mother totaling $190, 737.[4] The judge found that the father was "entitled to an equitable credit" of $500 per month "for his sole support of Elliot from January 1, 2007 to August 11, 2011." After applying the total equitable credit of $28, 177, the judge determined that the father had child support arrearages of $35, 783. The judge ordered the father to pay the arrearages to the mother within thirty days, "minus the college educational expenses" owed by the mother under the amended judgment of modification. This appeal followed.

         Discussion.[5]

         1. Equitable credit.

         The mother challenges the $28, 177 equitable credit the judge used to offset some of the father's child support arrearage for the period from January 1, 2007, to August 11, 2011, when Elliot was living with him. The mother argues that this equitable credit effectively constitutes a retroactive modification of child support that was outside the judge's power to award because no complaint for modification was pending.[6] See G. L. c. 119A, § 13 (a.) . The father contends that there was no retroactive reduction of his support obligation; rather, the credit merely reflected that he had satisfied a portion of his child support obligation by providing direct or actual support to Elliot while Elliot was living with him.

         In weighing the parties' arguments, we must also consider the broader context in which G. L. c. 119A, § 13 (a.), was enacted. "The Federal Government has created an elaborate procedural mechanism designed to help both the government and custodial parents to secure the payments to which they are entitled." Turner v. Rogers, 564 U.S. 431, 444 (2011), citing Blessing v. Freestone, 520 U.S. 329, 333 (1997). To that end, a State's eligibility for certain Federal grants[7] is conditioned on the operation of a child support enforcement program that conforms to the Child Support Enforcement Act (CSEA), Title IV, Part D of the Social Security Act, 42 U.S.C. §§ 651-669b (2012).[8]See Blessing v. Freestone, supra. See also Doucette v. Ives, 947 F.2d 21, 24 (1st Cir. 1991). As a participating State, Massachusetts has enacted G. L. c. 119A, §§ 1 et seq., which "provides for child support enforcement services in accordance with the provisions of [the CSEA]." Morales v. Morales, 464 Mass. 507, 510 n.5 (2013) .

         General Laws c. 119A, § 13 (a.), provides that " [a]ny payment or installment of support under any child support order issued by any court of this commonwealth . . . shall be on or after the date it is due, a judgment by operation of law . . . [and] shall not be subject to retroactive modification except with respect to any period during which there is pending a complaint for modification, but only from the date that notice of such complaint has been given."[9] In enacting § 13 (a.), "the Legislature limited the power of a judge to reduce retroactively any arrearages in child support except for any period during which there is a pending complaint for modification." T.M. v. L.H., 50 Mass.App.Ct. at 859, citing Quinn v. Quinn, 49 Mass.App.Ct. at 147-148. "The object of § 13 (a.) was to give support orders the finality of other judgments, to assist the [Department of Revenue] in its enforcement efforts." T.M. v. L.H., supra, quoting from Smith-Clarke v. Clarke, 44 Mass.App.Ct. 404, 406 (1998). By implicitly prohibiting extra-judicial modifications of child support, § 13 (a.) furthers the Commonwealth's policy of requiring court oversight for all agreements pertaining to child support. See White v. Laingor, 434 Mass. 64, 67 (2001), citing Massachusetts Child Support Guidelines, G. L. c. 208, § 28, and G. L. c. 119A, § 1 ("Selected enactments of the Legislature convey the importance of judicial review of child support agreements between parents"). See also Quinn v. Quinn, 49 Mass.App.Ct. at 146, quoting from Knox v. Remick, 371 Mass. 433, 437 (1976) ("[B]ecause '[p]arents may not bargain away the rights of their children to support from either one of them, ' . . . the Legislature has placed certain limits on the ability of parents to enter into binding contracts relating to child support"). It is for this reason that we have previously held that an agreement to reduce child support that has not received judicial approval does not constitute a defense to a complaint for contempt. Quinn v. Quinn, 49 Mass.App.Ct. at 148.

         Here, although the parties evidenced an intent to jointly seek modification of the child support order by executing and filing[10] the 2009 agreement with the Probate and Family Court, that filing was rejected on procedural grounds and the matter was not further pursued. As such, there was no "pending" complaint for modification in 2009 for purposes of G. L. c. 119A, § 13 (a.), and the judge was prohibited from retroactively reducing the father's child support obligation. As the judge correctly determined, she did not obtain authority to reduce retroactively the father's child support obligation until 2011, when the mother was served with the second complaint for modification.[11]

         That said, as we acknowledged in T.M. v. L.H., "[A] number of [other] jurisdictions" with statutory provisions similar to G. L. c. 119A, § 13 (a.), "have recognized . . . special circumstances of an equitable nature . . . that justify the grant of a credit to a support obligor for payments or expenditures made that were not in strict compliance with the support order or judgment." 50 Mass.App.Ct. at 861, citing Alaska Dept. of Rev, v. Campbell, 931 P.2d 416, 419-420 (Alaska 1997), Goold v. Goold, 11 Conn.App. 268, 274-275 (1987), Baer v. Baer, 263 Ga. 574, 575-576 (1993), and Griess v. Griess, 9 Neb.App. 105, 112-113 (2000). The father urges us to follow those jurisdictions and to rule that "a judge, in compelling circumstances of an equitable nature, and without contravening G. L. c. 119A, § 13 (a.), may apply a credit in calculating child support arrearages to reflect payments made in a manner other than as directed by the original order." T.M. v. L.H., 50 Mass.App.Ct. at 8 61.

         Although, as we have noted, a number of other jurisdictions have recognized the concept of equitable credits, they have not done so on uniform grounds. As a general proposition, we can only say that the concept is clearly rooted in equity and its application is driven by equitable considerations. Beyond that, we discern three primary strands of analysis: (1) some courts grant an equitable credit when the elements of equitable estoppel are established; (2) some courts grant an equitable credit when the support obligation has been fulfilled by an alternative method; and (3) some courts simply apply general equitable principles to determine whether an equitable credit is in order. Regardless of the approach used, the jurisdictions that allow credit on an equitable basis largely agree that the adjustment of support must not be unilateral, the child's need for adequate ...


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